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Learning from History: The Federal Union and Marriage

Debate over the nature of marriage continues throughout the country. Most recently the U.S. Justice Department announced that it will not defend the Federal Defense of Marriage Act (DOMA) in the several lawsuits in which the constitutionality of DOMA is in issue (although the statute remains in effect). Proponents of DOMA contend that the government has the right to defend the "traditional" concept of marriage as between a man and a woman as the only legitimate form of marriage. This paper is intended to show that marriage has undergone many legal classifications over the history of the United States. The differences in approach to marriage between the federal government and the various states are part of the picture. While currently these differences between the states on one hand and between the federal government and some of the states (as reflected in recognition and non-recognition of same-sex marriages and marriage-like unions, and the federal legislation known as the Defense of Marriage Act) are very much in the public forum. However, there have always been differences over the law of marriage throughout the history of the republic. Examples include disputes over the validity of slave marriages, polygamous marriages, common-law marriage, religious marriages, confidential marriages, covenant marriages, incestuous marriages, and interracial marriages. The author asks the reader to consider what we can learn from this history. He predicts that while the Defense of Marriage Act is likely to eventually be overturned, restricted in application or even repealed, this will not end the debate over same-sex unions since all the states of the union are unlikely to agree on the status of same-sex marriages.

Date posted: February 18, 2011
; Last revised: September 13, 2011

Suggested Citation

Kindregan, Jr., Charles P., Learning from History: The Federal Union and Marriage (2011). Southern California Review of Law and Social Justice, Vol. 20, p. 67, 2011; Suffolk University Law School Research Paper No. 11-06. Available at SSRN: http://ssrn.com/abstract=1762885